Swanstar Nominees Pty Ltd (Migration)

This matter concerned an application by Swanstar Nominees Pty Ltd for approval of a nominated position under the Direct Entry nomination stream. The Administrative Appeals Tribunal, constituted by Member Nicola Findson, was required to determine whether Swanstar Nominees Pty Ltd met the requirements of regulation 5.19(4) of the Migration Regulations 1994 for the nomination to be approved.

The primary legal issue before the Tribunal was whether the applicant had satisfied all the mandatory criteria stipulated in regulation 5.19(4), particularly the requirement for advice from a regional certifying body. The Tribunal considered whether the applicant had provided sufficient evidence to demonstrate compliance with the various sub-paragraphs of regulation 5.19(4), including the specific conditions related to regional certification under sub-paragraph (h)(ii)(F).

The Tribunal's reasoning focused on the applicant's inability to obtain the required advice from the relevant regional certifying body, the Department of Training and Workforce Development in Western Australia. Despite being afforded opportunities to provide this information, Swanstar Nominees Pty Ltd was unable to do so, as the Department confirmed it had ceased providing such advice for Perth-based positions lodged after March 2017. The Tribunal noted that regulation 5.19(4)(h)(ii)(F) mandates that a specified regional certifying body located in the same State or Territory as the nominated position must have advised the Minister on certain matters. As this requirement was not met, the Tribunal concluded that the nomination could not be approved.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination.